Incorporation Procedures FOREWORD This manual is a guide for interpretation and implementation of the statutes authorizing incorporation of new municipalities. In 2005, the South Carolina General Assembly amended S.C. Code Title 5, Chapter 1 to clarify and further define the procedures and requirements for an area to incorporate as a municipality. The law now authorizes an area to utilize an incorporation election to be initiated by a petition of 15 percent of qualified electors in the area seeking incorporation. Prior to holding the election the Joint Legislative Committee on Municipal Incorporation and the Secretary of State must determine and certify that specific requirements set forth in Section 5-15-30 have been met. This manual provides the statutory requirements for incorporation, as well as the resources available to assist a group seeking incorporation. This manual was compiled and edited by David Powers for the Municipal Association of South Carolina . 1411 Gervais Street PO Box 12109 Columbia, S.C. 29211 803.799.9574 www.masc.sc February 2006 Table of Contents Certification of Incorporation Prerequisites...............................................................1 Secretary of State Regulation.........................................................................................3 Steps for Required for Incorporation...........................................................................4 Petition for Incorporation..........................................................................................4 Evaluation....................................................................................................................4 Election.........................................................................................................................5 Election Returns .........................................................................................................6 Issuance of Certification of Incorporation ..............................................................6 Election of Municipal Officers.................................................................................. 6 Cancellation of Certificate of Incorporation...............................................................6 Suit Challenging Incorporation ...................................................................................7 Checklist for Incorporation ...........................................................................................8 Appendix A: Resource List for Incorporation ...........................................................9 Appendix B: Public Notice...........................................................................................15 Appendix C: Sample Petition .....................................................................................16 Appendix D: Act 77........................................................................................................18 Appendix E: Voting Rights Act, Section 5 ...............................................................25 Incorporation Handbook Incorporation of a new municipality is accomplished by special election initiated by petition of 15 percent of electors and conducted by commissioners appointed by the Secretary of State pursuant to S.C. Code Title 5, Chapter 1, § 5- 1-10 through 5-1-110, and as amended in Act 77 effective July 1, 2005. If the election favors incorporation, the Secretary of State issues a certificate of incorporation. The statutes establish prerequisites that must be met before a certificate of incorporation is issued. Incorporators should demonstrate compliance with the prerequisites when they file the petition for incorporation with the Secretary of State. Certificate of Incorporation Prerequisites The Secretary of State must determine all of the following requirements set forth in S.C. Code § 5-1-30, are met before he issues a certificate of incorporation: 1. The area to be incorporated has a population density of at least 300 people per square mile according to the latest United States Census. This population requirement does not apply to areas bordering on or within two miles of the Atlantic Ocean and to sea islands bounded on at least one side by the Atlantic Ocean. These areas must have a minimum of 150 dwelling units with an average of at least one dwelling per three acres of land, for which at least 15 percent of qualified electors in the area petition for incorporation. 2. No part of the area is within five miles of the boundary of an active incorporated municipality. This condition does not apply if one or more of the following conditions are exist: a. if the area has been refused annexation by the nearest municipality for six months; b. if the area has a population of more than 7,000; c. if the boundaries of the area are within five miles of the boundaries of two different incorporated municipalities in two separate counties other than the county within which the area lies, and when the boundaries of the area are more than five miles from the boundaries of the nearest incorporated municipality that lies within the same county of the area, and when the area seeking incorporation exceeds one- fourth of the land area of the nearest municipality; 1 d. the area seeking incorporation lies within a county with a population of less than 51,000 people. 3. An approved service feasibility study for the proposed municipality has been filed with the Secretary of State, evaluated by the Joint Legislative Committee on Municipal Incorporation, and approved by the Secretary of State. 4. The area to be incorporated is contiguous. If publicly-owned property intervenes between two areas proposed to be incorporated together, which but for the intervening publicly-owned property would be adjacent and share a continuous boundary, the intervening publicly-owned property does not destroy contiguity. Publicly-owned property is defined as any federally- owned, state-owned, or county-owned land or water area. 5. The area to be incorporated has filed a proposal for providing either directly or by contract a minimum level of law enforcement services as required in regulations promulgated by the State Law Enforcement Division. If law enforcement services are by contract, the proposal must indicate which governmental entity provides the service and the estimated compensation for the service. 6. The area to be incorporated has filed a proposal demonstrating that at least three of the following services will be provided to the incorporated area no later than the first day of the third fiscal year following the effective date of incorporation. The services may be either provided by the municipality or by contract. a. fire protection at a minimum service level required in regulations promulgated by the South Carolina Fire Marshall; b. solid waste collection and disposal; c. water supply, water distribution, or both; d. wastewater collection and treatment; e. storm water collection and disposal; f. enforcement of building, housing, plumbing, and electrical codes; g. planning and zoning; h. recreational facilities and programs; or i. street lighting. 2 Secretary of State Regulations The Secretary of State issued Regulation 113-200 (1993) providing for the certification of information required by S.C. Code § 5-1-30 as follows: A. Population density. Incorporators must provide a certification by the Research and Statistical Services Division (RSSD) of the South Carolina Budget and Control Board that the area in the proposed municipality has a population density of at least 300 persons per square mile. B. Boundaries. Incorporators must provide a certification by RSSD or a county planning or zoning office that no part of the area of the proposed municipality is within five miles of an active municipality. They must show they served by certified mail the notice of intent to incorporate to the Mayor, Town Manager, or similar official, of a municipality within 10 miles of the proposed municipality, as well as the Municipal Association of South Carolina. They must serve the notice at least 15 days prior to applying to the Secretary of State. Notice must include a map of proposed boundaries. C. Total Land Area. Incorporators must provide a certification by RSSD or a county planning or zoning office regarding total land area (in square miles) in the proposed corporate limits. D. Current Assessed Value. Incorporators must provide a certification by RSSD or a county assessor or auditor of the current assessed value of real and personal property in the proposed municipality. They must include with the certification a calculation of general obligation bonding capacity available without a referendum. E. Service Feasibility Study. Incorporators must provide the following minimum information for approval of a service feasibility study: 1. A map showing proposed corporate limits and distance from corporate limits of any active municipality. 2. Total population in proposed corporate limits based on latest U.S. Census. 3. Total land area (in square miles) in proposed corporate limits. 4. Definite list of proposed services to be provided by proposed municipality. 5. Detailed explanation of each service to be provided with number, qualifications and salary ranges of personnel required to deliver services. 6. Service to be obtained by contract must include detailed description of the service and realistic estimate of cost of service contract. Consent letters, contracts or ordinances for services to be provided by another 3 governmental unit, indicating